New Law Requires CEQA Assessment of Greenhouse Gases and Climate Change

Since passage of AB 32 in 2007, jurisdictions in California have struggled with what the law means with regard to addressing climate change and greenhouse gases (GHG) in their environmental documents. With the passage of SB 97 (Public Resources Code 21083.05), recent CEQA Court case decisions and OPR's proposed amendments to the CEQA Guidelines, that direction is now clear.

Lead agencies are now obligated to determine whether a project's climate change-related effects may be significant, and to impose feasible mitigation to substantially lessen any significant effects. Failure to assess the effects of greenhouse gases and make a determination of significance can invalidate your CEQA documents and makes your jurisdiction vulnerable to legal challenge. MNDs and EIRs for your general plans, community plans, and private development projects could easily be challenged and found deficient for failure to properly assess GHG and climate change impacts. Such findings could result in significant delays and extra costs to complete those planning efforts and to implement important projects-circumstances that certainly are undesirable during these tough economic times. The key issue is whether the lead agency has made a "good faith effort" to assess GHG and determine whether such emissions could be significant. Lead agencies have been successfully sued for failure to address GHG/climate change issues at all, or for failure to make a determination of significance. Two examples of this are:

• Center for Biological Diversity et al. v. City of Desert Hot Springs, et al. No. RIC 464585 (Riverside County Sup. Ct., Aug. 6, 2008). Lead agency had argued that a climate change analysis was not required for the EIR and that such analysis would be too speculative due to lack of specific thresholds and state guidance. Riverside County Superior Court found that the EIR (for a proposed development project) did not make a meaningful attempt to analyze climate change issues before finding that this is "too speculative."


• Natural Resources Defense Council, Inc et al. v. Inland Energy, et al., No. BS 110792 (Los Angeles County Sup. Ct., July 28, 2008). In this case, the court set aside the certification of a Program Environmental Assessment ("PEA") because the PEA failed to fully identify the project's effects on global warming, failed to adequately analyze or quantify the project's contribution to such effects, and, as a result, failed to consider mitigation measures.

Lead Agencies Have Wide Discretion to Apply Local Policy Preferences

Determining significance of GHG and climate change effects is a challenging task. A variety of greenhouse gas modeling approaches are available, although much evolution is occurring and the availability of critical and reliable data inputs remains low. The good news is that local agencies retain extensive discretion with respect to impact assessment protocols and criteria for determining the significance of project and cumulative impacts. A number of communities have already adopted local thresholds or a communitywide strategy for GHG reduction that can function as a surrogate threshold until more specific modeling methodologies and significance assessment criteria are developed. A quantitative significance threshold is not required under any statutes, nor is a net zero emissions standard required, although any local government can select such an approach if desired. Performance standards and qualitative criteria are sufficient and might be more effective for your agency.

Adoption of Local CEQA Thresholds Now Makes Good Sense

Waiting for the State to establish CEQA assessment procedures for GHG and climate change could jeopardize local autonomy and restrict discretion in determining what is significant and what kinds of mitigation strategies make most sense in your community. For example, OPR's recently published Interim Revisions to CEQA Guidelines (January 2009) could prohibit a lead agency from approving off site mitigation or some other form of carbon offsets to mitigate a project's significant GHG emissions, unless a community-wide GHG reduction program is in place.

If your agency's workload is light right now, it is an opportune moment to update comprehensive plans to address legislative mandates concerning GHG and climate change.

Key tasks to develop your CEQA procedures could include:

• Workshops with staff and Planning Commission to review State mandates, discuss local agency obligations, establish policy preferences and explore assessment techniques


• Bring in specialists with expertise in emissions modeling, verification of "green" building codes and energy efficiency performance standards and cooperative ventures with electricity and natural gas companies


• Drafting specific revisions to local CEQA Rules


• Public hearings to present/discuss proposed new rules


• Preparation and adoption of local resolutions and/or ordinances to officially adopt new rules

Hogle-Ireland, Inc. Is Your Best Choice

Hogle-Ireland is ready to help your agency become a leader in defining locally customized, flexible protocols for assessment of GHG emissions, analysis of effects related to climate change and threshold(s) for determination of project level and cumulative impact significance, along with a menu of acceptable mitigation strategies that represent your community's needs, priorities and values. With over 20 years in business to provide comprehensive planning and environmental consulting services to cities and counties, we are your best choice to develop a practical and cost-effective solution. Please contact Randy Nichols, AICP, Director of Environmental Planning, to discuss a strategy and a budget to update your local CEQA Thresholds-call 949-553-1427.

Randy is a veteran planner with 30 years of professional experience. He has specialized in environmental impact assessment under CEQA and NEPA for more than 20 years, and has a seasoned practicioner's understanding and the skills to craft, interpret and apply significance thresholds in CEQA documents. Having completed projects for more than 30 local agencies throughout southern California, he is familiar with the local planning process and works productively and cooperatively with local planning staff and decision-makers.